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White House Uses Executive Order to Ban the Box for Federal Employment; Opens the Door to Wide-Ranging Impact on Employers

Published by on November 4, 2015

Continuing its longstanding strategy of using Executive Orders to implement new policies and pave the way for future legislation, the Obama administration announced in early November that the federal government would be required to follow a ‘Ban the Box’ protocol pertaining to employee hiring in the future. The term “Ban the Box” refers to the […]

Continuing its longstanding strategy of using Executive Orders to implement new policies and pave the way for future legislation, the Obama administration announced in early November that the federal government would be required to follow a ‘Ban the Box’ protocol pertaining to employee hiring in the future.

The term “Ban the Box” refers to the checkbox commonly found on many standard employment applications that specifically asks whether an applicant has been convicted of a crime.

Considering the fact that 600,000+ Americans complete their sentences, leave prison and attempt to re-integrate into society each year, progressive policy advocates have suggested that the use of the felony conviction checkbox on employment applications virtually guarantees that ex-convicts remain unemployed, creating a permanent underclass and increasing recidivism.

Employers have historically argued that the checkbox gives them essential information on a candidate and that they must know if an applicant has previously committed a crime, and use that information to make an informed employment decision.

To be clear, the most common strategy of Ban the Box has been to require employers to remove the question from initial applications and insist that, if they choose a candidate for an interview, that they not ask the question verbally or in writing until after the first interview is completed. At subsequent steps in the hiring process, however, employers have generally retained the right to utilize criminal history questions and evaluations.

The idea is to give some of the nation’s nearly 70 million persons who possess a criminal record the initial opportunity to present themselves positively and develop rapport with a potential employer, before they are summarily disqualified on the basis of prior criminal history.

In practice, each law is different in its specifics, requirements and sanctions, creating confusion and frustration for employers nationally.

Although the initial language of the most recent Executive Order specifically applies to the federal government itself, its impact on federal contractors is expect to be eminent.

The Office of Federal Contract Compliance (OFCCP) already issued a directive cautioning government contractors that the consideration of criminal records in hiring or other personnel decisions could have a disparate impact on minorities, which would constitute a violation of Title VII of the Civil Rights Act. This connection is based on the reasoning first presented in an enforcement guidance issued in 2012 by the Equal Employment Opportunity Commission (EEOC), and it sets the stage for wide-ranging enforcement of Ban the Box on a civil rights basis (even where no applicable Ban the Box law exists).

In addition, bills pending in both houses of Congress would extend Ban the Box to federal contractors, and in at least one case, mandate that contractors not inquire about criminal history until after a conditional offer of employment has been made.

The president’s initial order directs the Office of Personnel Management (OPM) to issue broad guidance to ensure that ‘Ban the Box’ becomes a universal practice across the federal government, but based upon the administration’s history of issuing fifteen prior orders specifically aimed at the employment and operational practices of government contractors, a formal expansion of the order is largely anticipated as a given in the near future.

Laconic Lookout:

To most employers, inquiring about a potential employee’s criminal history seems like an obvious and unquestionable right within the framework of evaluating and selecting future employees.

The nationwide drive for criminal justice reform, however, has called this into question, leaving open the possibility that employers could be found to be violating a potential employee’s civil rights, even if a Ban the Box law is not in effect.

The administration’s most recent executive order has the potential to enshrine this view as the federal government adopts a comprehensive Ban the Box strategy. Government contractors and, ultimately, all employers, should consult with their employment law counsel to evaluate strategies for proactively addressing Ban the Box and using other tools and methods to ensure that clear compliance with Title VII is also assured.

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